The Issue Whether the outdoor advertising signs of Respondent were in violation of Florida Statutes 479.07(1), sign erected without a state permit; Whether the subject signs were in violation of Florida Statutes 479.11(1), sign erected within 660 feet of the right of way of a federal aid highway; Whether subject signs are new and different signs inasmuch as they have new facings, are erected on new poles and are materially elevated from the location of previous signs. Whether subject signs are in violation of the federal and state laws and should be removed.
Findings Of Fact Petitioner, Department of Transportation, issued to the Respondent, Stuckey's of Eastman, Georgia, notices of alleged violations of Chapter 479 and Section 335.13, Florida Statutes, on July 28, 1975 with respect to five (5) signs at five (5) different locations, to-wit: .14 miles south of Volusia County on Interstate Highway 95; .75 miles south of Volusia County on Interstate Highway 95; 1.58 miles south of Volusia County on Interstate Highway 95; and 3.51 miles south of Volusia County on Interstate Highway 95. Pursuant to these notices, the Respondent requested this hearing for the determination of whether the Respondent is in violation of Florida Statutes, as alleged in the violation notice. Respondent is the owner of five (5) signs referred to in paragraph (1) of these findings Five signs with similar copy were erected by the Respondent in May of 1971 at the approximate location of subject signs. The Respondent owned and maintained the five (5) signs from April of 1971 until April-June of 1975 when such signs were removed and the subject signs built. Each of these signs is within 660 feet of the nearest edge of the right of way of an interstate highway system, but each of the signs have a permit attached, first issued in 1971 and reissued through 1974 inasmuch as the former signs were owned by Respondent and lawfully in existence on December 8, 1971, and became nonconforming on December 8, 1971, under Section 479.24(1), Florida Statutes. Between April-June, 1975, the Respondent replaced the signs existing since 1971 to better advertise its products along 1-95, south of Volusia County, Florida. Said replacement signs are in the approximate location as the replaced signs and said replacement signs have the same size facing as the replaced signs. The replacement signs are on different poles, wood being substituted for metal and at a more elevated height (between 16 and 20 feet higher) than the replaced signs. The replacement subject signs are much more visible to the traveling public than the old signs because of the materially increased elevation. The charge in the location of the subject signs, although only a short distance, the new facing materials, the replacement of metal poles with wooden poles and the decided increase in elevation make these different signs within the meaning of Chapter 479, F.S., and the federal regulations, thus, becoming new signs requiring permits rather than qualifying as nonconforming with the customary maintenance or repair of existing signs, allowed under Section 479.01(12), F.S., infra. The owner of the signs was given written notice of the alleged violations and said Respondent has had a hearing under Section 479.17, F.S., and Chapter 120, F.S.
Recommendation Remove subject signs if said signs have not been removed by the owner within ten (10) days after entry of the final order herein. DONE and ORDERED this 28th day of May, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Benjamin F. Wren, III, Esquire 0. Box 329 Deland, Florida 32720
Findings Of Fact Henderson Signs is a partnership which was initially owned and operated by Ladon Henderson and his wife, Margie Henderson. When Ladon Henderson became inactive, his son, Gene Henderson, became a partner and he now operates the business with Margie Henderson. Henderson Signs has been licensed by the Department of Transportation to engage in the outdoor advertising business since before the year 1976. This license was renewed annually as required, and Henderson Signs now holds Outdoor Advertising License Number 20157 reissued on November 16, 1982. Henderson Signs has operated in Washington, Gadsden and Jackson Counties, but in July of 1981 this business was sold to Tri-State Systems, Inc., and pursuant to the terms of this sale Henderson Signs may not now engage in the outdoor advertising business in these three counties. It may, however, operate elsewhere. Between the years 1978 and 1981 Henderson Signs has received 17 notices of violations from the Department of Transportation charging that signs at 20 locations on Interstate 10 in Jackson County were erected illegally. This resulted in the opening of 22 dockets in the Division of Administrative Hearings to litigate administratively the charges against Henderson Signs. In 14 of these dockets the findings and conclusions resulted in a determination that Henderson was guilty as charged. Some of these guilty findings were appealed to the District Court of Appeals, where they were affirmed on the merits. Some were affirmed by per curiam opinions. Ten other cases have been docketed in this Division involving signs now owned by Tri-State Systems, Inc., pursuant to the sale by Henderson Signs. (This data has been taken from exhibits 1 and 2 offered by the Department.) This evidence demonstrates that the Respondent has repeatedly erected outdoor advertising signs along Inter-state 10 in Jackson County which were found to be illegal signs because of spacing violations, zoning violations, or lack of the required permit authorizing their erection. The legal position of Henderson Signs in many of the cases where administrative hearings were requested subsequent to the service of Notices of Violations, was that no state permits were necessary for varying reasons, one of which was that Interstate 10 had not become a part of the United States Interstate Highway System because it had not been opened to the public. Findings of not guilty were made in one Division of Administrative Hearings docket involving three sign violations, because of a failure of the evidence to prove that Interstate 10 was open to the public. (Data taken from exhibit 2 offered by the Department). The Administrative Procedure Act, Chapter 120, Florida Statutes, affords parties whose substantial interests are affected by actions of Administrative Agencies the right to a hearing to resolve disputed issues. Henderson Signs utilized the provisions of this Act. When the disputes were resolved against the contentions of Henderson Signs, by agency order or by the Court after appeal, it removed the signs that were the subject of these proceedings. The Department of Transportation has never had to remove a Henderson sign for failure of the Respondent to comply with a final order determining it to be illegal. The Respondent contends that a genuine issue existed regarding the necessity of securing a permit prior to the erection of a sign along the site of Interstate 10 in Jackson County, until the time it became a part of the Federal Interstate Highway System by being opened for public traffic. There is no evidence from which a finding of fact can be made as to precisely when Interstate 10 in Jackson County was opened and in use by the public. The formal ceremony opening Interstate 10 was held in November of 1978. During the time between the erection of a sign by the Respondent and the order that it be removed after a determination that it was illegal, Henderson Signs received rental payments from the sign advertiser. Subsequent to July of 1981, when the Respondent sold its sign business in Jackson County, there have not been any notices of violation issued to Henderson Signs by the Department of Transportation.
Recommendation From the foregoing, Findings of Fact and Conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Henderson Signs be dismissed. THIS RECOMMENDED ORDER entered on this 21 day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1983. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building; M.S . 58 Tallahassee, Florida 32301-8064 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the Respondent is in violation of s. 479.07(1), Florida Statutes, a law which requires that a permit be applied for, granted, and renewed each year as a regulation for outdoor advertising in the State of Florida.
Findings Of Fact The following described sign had no valid permit tag for the years 1974-1975, 1976-1977: A two-faced sign, one face north and one face south, located on SR 33 at the junction of SR 48 with copy "Clear Lake Campground". Notice of violation regarding the subject sign was properly sent by the Department of Transportation and received by the Respondent. A hearing was requested by the Respondent through Linda Vernon, Wildwood, Florida. A notice was duly sent and the time set for 10:00 A.M. The hearing officer postponed this hearing until 1:00 P.M. awaiting the arrival of a representative of the Respondent. There was no appearance.
Recommendation Remove subject signs ten (10) days after date of final order unless said signs are previously removed by the Respondent. DONE and ORDERED this 18th day of June, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. C. W. Lichtenberger Post Office Box 47 DeLand, Florida 32720
Findings Of Fact In 1959 Petitioner erected the 25' x 12' poster panels here in issue on land leased by Petitioner on East Memorial Boulevard and Gary Road in Lakeland, Florida. These signs have been properly maintained since that time. Prior to 1975 signs located within city limits did not require state permits; however, in 1975 the law was changed to require those signs located within city limits to have permits. Such permits were issued upon application and without the normal fee. On May 8, 1978 Petitioner made application for a permit for the two panels located on U.S. 92 (East Memorial Boulevard) and Gary Road in Lakeland (Exhibit 2). U.S. 92 is a federal aid primary highway. On 9 May 1978 the application in Exhibit 2 was disapproved because it was located within 500 feet of a sign owned by Goddard Signs which had been erected circa 1973. Goddard obtained a permit for its sign in 1974 (Exhibit 6) and has renewed this permit annually thereafter. At the time Petitioner disapproved Exhibit 2 the policy of refusing to issue initial permits to non-conforming signs was being followed. By virtue of its proximity to the Goddard sign, Petitioner's sign was a non-conforming sign. Largely because of adverse court decisions Petitioner revised its policy with respect to non-conforming signs erected many years ago to grant approval to applications received by 17 February 1979. Notice of this change was contained in a notice dated December 18, 1978 (Exhibit 4) which was sent to all outdoor advertisers including Petitioner. This notice contained the following provision: NOTE: Signs erected inside the limits of a city or town on an Interstate or Federal Aid Highway are required to have permits. Should you have failed to acquire such a tag, you should make application and obtain these permits by February 17, 1979. Failure to do so makes the sign subject to all the penalties provided for in Chapter 476 of the Florida Statutes, including, but not limited to, the removal of the signs. Although Petitioner was aware of this notice, it did not submit an application for the signs in question until March 21, 1979 (Exhibit 3). This application was also denied by Petitioner because of its proximity to the Goddard sign. Had Petitioner's application (Exhibit 3) been submitted on or before 17 February 1979 it would have been approved by Respondent.
The Issue Whether the subject signs violate the state and federal laws and should be removed; Whether Respondent has violated Section 479.07(1)(4)(6) and Section 479.11(1), Florida Statutes.
Findings Of Fact By letter from Benjamin W. Redding, Esquire, the Hearing Officer was advised that no appearance would be made on behalf of Commander Realty, Inc. and notice was given that Respondent waived any objections to conduct the hearing at the place other than Chipley or in a summary manner. The following described sign is located in an unzoned area outside the city limits in an essentially rural area. The location is on a federal aid highway, U.S. 98. The location is on the corner of U.S. 98 and East Eleventh Street. The copy is Town and Country Lake Estates, a double-faced sign. This sign sets two feet on the road right of way, has never been permitted, no application was made before its erection sometime during the fall of 1975.
Findings Of Fact Petitioner applied for a permit to erect a sign along the north side of SR 688, 500 feet west of U.S. 19 facing east (Exhibit 1). This application was disapproved because the proposed location is within 1000 feet of an existing sign along SR 688, facing in the same direction. With respect to outdoor advertising signs the character of SR 688 and U.S. 19 change at their intersection. North of SR 688 U.S. 19 is a federal-aid primary highway, south of SR 688 U.S. 19 is a federal-aid urban highway. For sign permitting purposes U.S. 19 is a controlled highway north of SR 688 and an uncontrolled highway south of SR 688. Similarly, SR 688 is a federal-aid primary highway east of U.S. 19 and is uncontrolled west of U.S. 19. A duly permitted sign, facing east, is located along the north side of SR 688 approximately 200 feet east of U.S. 19. This sign is within 1000 feet of the location for which Petitioner seeks the permit at issue in these proceedings. The proposed sign is intended to serve westbound traffic along SR 688; however, the sign can be seen by motorists traveling on U.S. 19 while stopped in the middle of the intersection of SR 688 and U.S. 19, but the message on the sign would be unreadable to the naked eye. Respondent contends the proposed sign is governed by the spacing requirements because the sign is located within 660 feet of the right-of-way of the federal-aid primary highway portion of U.S. 19.
The Issue Whether Respondent has violated Sections 479.07(1),(4),(6) and 479.11(1),Florida Statutes. At the hearing, it was announced that the signs in question are owned by a partnership known as Henderson Signs, Don Henderson and Gene Henderson being partners thereof. It was stipulated that the above-captioned cases would be consolidated for hearing and that Henderson Signs had been notified of the violations and was prepared to proceed with a hearing. The stipulation was accepted by the hearing officer and the caption of the case amended to show Henderson Signs as Respondent.
Findings Of Fact 1. It was stipulated by the parties that the two signs in question are owned by Respondent and are located as indicated on Exhibit 3 as follows: The Circle D. Ranch sign is located 9/10 of a mile east of the east lane of State Highway 81 and 85 feet south of the right-of-way fence of Interstate Highway I- The Arrowhead Campsite sign is located 1.1 miles east of the east lane of State Highway 81 and 190 feet south of the right-of-way fence of Interstate Highway I-10 (Exhibits 1,2,3 & 4, Testimony of Williams, Jordan). No state permit tags are affixed to the signs and they are not located in a zoned or unzoned commercial area as determined by physical observation (Testimony of Mr. Williams). The signs are located outside any incorporated city or town (Exhibits 3 & 4, late-filed Composite Exhibit 5, Testimony of Mr. Williams, Mr. Jordan).
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice. The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441. U.S. 17/92/441 is a federal-aid primary highway. Kaley Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding. By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required. Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue. There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue. The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1981, but which had not been issued. It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Recommendation Based on the foregoing Findings of Pact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the entire structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
